Cite as 24 I&N Dec. 442 (BIA 2008) Interim Decision #3597
Matter of Rumonat Iyabode ANIFOWOSHE, Beneficiary of a
visa petition filed by Abayomi M. Fakunle, Petitioner
File A98 902 585 – South Portland, Maine
Decided January 31, 2008
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
An alien child who was adopted under the age of 18, and whose natural sibling was
subsequently adopted by the same adoptive parent or parents while under the age of 16, may
qualify as a “child” within the meaning of section 101(b)(1)(E) of the Immigration and
Nationality Act, 8 U.S.C.A. § 1101(b)(1)(E) (West 2008), even if the child’s adoption
preceded that of the younger sibling.
FOR PETITIONER: Irena I. Karpinski, Esquire, Washington, D.C.
FOR THE DEPARTMENT OF HOMELAND SECURITY: Jason Raphael, Associate
BEFORE: Board Panel: PAULEY, Board Member; LIPPMAN and MANN, Temporary
MANN, Temporary Board Member:
This is an appeal from a March 14, 2007, decision of the Field Office
(“FO”) director of the United States Citizenship and Immigration Services
(“USCIS”) denying the visa petition filed by the petitioner on behalf of the
beneficiary as his adopted child. The appeal will be sustained and the record
will be remanded to the FO director.
The beneficiary was adopted on May 1, 2002, when she was 17 years of
age. On May 29, 2003, the petitioner and his wife adopted the beneficiary’s
natural siblings, who were then under 16 years of age. The FO director denied
the petition, finding that section 101(b)(1)(E) of the Immigration and
Nationality Act, 8 U.S.C. § 1101(b)(1)(E) (1994), had been amended by the
Act of Dec. 7, 1999, Pub. L. No. 106-139, 113 Stat. 1696, “to provide that an
adopted alien child who is under the age of eighteen may be considered a
‘child’ as defined in the Act, if the child is adopted with or after a natural
sibling who is also considered a ‘child’ under the Act.”
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We concur with the petitioner’s argument on appeal that there is no
statutory or regulatory provision requiring that the beneficiary be adopted at
the same time or after a natural sibling. Section 1 of the Act of Dec. 7, 1999,
provides in pertinent part as follows:
PROVIDING THAT AN ADOPTED ALIEN WHO IS LESS THAN 18 YEARS OF
AGE MAY BE CONSIDERED A CHILD UNDER THE IMMIGRATION AND
NATIONALITY ACT IF ADOPTED WITH OR AFTER A SIBLING WHO IS
A CHILD UNDER SUCH ACT.
(a) IN GENERAL.—Section 101(b)(1) of the Immigration and Nationality Act
(8 U.S.C. 1101(b)(1)) is amended—
(1) in subparagraph (E)—
(A) by inserting “(i)” after “(E)”; and
(B) by adding at the end the following:
“(ii) subject to the same proviso as in clause (i), a child who: (I) is a natural
sibling of a child described in clause (i) or subparagraph (F)(i); (II) was
adopted by the adoptive parent or parents of the sibling described in such
clause or subparagraph; and (III) is otherwise described in clause (i), except
that the child was adopted while under the age of 18 years . . . .”
Sec. 1, 113 Stat. at 1696.
On appeal, the USCIS counsel cites to a 1999 memorandum advising field
offices of the Immigration and Naturalization Service (“INS”) (now the
Department of Homeland Security (“DHS”)) that section 1 amended the Act
to provide that an adopted alien child who is under the age of 18 may be
considered a “child” as defined in the Act, if the child is adopted with or after
a sibling who is also considered a “child” under the Act. Memorandum from
Michael Cronin, Acting Assoc. Comm’r, Office of Programs, to INS Officials
(Dec. 28, 1999). However, we have held that decisions and internal
memoranda issued by the INS or DHS are not binding authority on the Board.
See Matter of Briones, 24 I&N Dec. 355, 365 n.7 (BIA 2007); Matter of Tijam,
22 I&N Dec. 408, 416 (BIA 1998).
Moreover, while the title of the Act of Dec. 7, 1999, would seem to support
the FO director’s decision, the United States Supreme Court has held that the
title of a statute cannot limit the plain meaning of the text and is to be used for
interpretive purposes only when it sheds light on some ambiguous word or
phrase. See INS v. St. Cyr, 533 U.S. 289, 308-09 (2001); Carter v. United
States, 530 U.S. 255, 267 (2000); Pennsylvania Dep’t of Corrections v.
Yeskey, 524 U.S. 206, 212 (1998); Bhd. of R.R. Trainmen v. Baltimore & Ohio
R.R. Co., 331 U.S. 519, 528-29 (1947).
The statute we now consider contains no ambiguous term or phrase. Neither
the title nor the text of the law currently codified at section 101(b)(1)(E)(ii) of
the Act, 8 U.S.C.A. § 1101(b)(1)(E)(ii) (West 2008), contains the “with or
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after” restriction in the title to the Act of Dec. 7, 1999. Section 101(b)(1) of
the Act provides in pertinent part as follows:
The term “child” means an unmarried person under twenty-one years of age who
. . .
(E)(i) a child adopted while under the age of sixteen years if the child has been
in the legal custody of, and has resided with, the adopting parent or parents for at
least two years or if the child has been battered or subject to extreme cruelty by the
adopting parent or by a family member of the adopting parent residing in the same
household: Provided, That no natural parent of any such adopted child shall
thereafter, by virtue of such parentage, be accorded any right, privilege, or status
under this chapter; or
(ii) subject to the same proviso as in clause (i), a child who: (I) is a natural
sibling of a child described in clause (i) or subparagraph (F)(i);1
(II) was adopted
by the adoptive parent or parents of the sibling described in such clause or
subparagraph; and (III) is otherwise described in clause (i), except that the child
was adopted while under the age of 18 years . . . .
“We have stated time and again that courts must presume that a legislature
says in a statute what it means and means in a statute what it says there.”
Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992). When the
language of the statute is plain, legislative history is irrelevant. See, e.g.,
United States v. Gonzales, 520 U.S. 1, 6 (1997). In this case, however, we find
that the legislative history supports the plain language of the statute.
According to the House Judiciary Committee Report, the stated purpose of
the bill, H.R. 2886, 106th Cong. (1999), was to maintain family unity by
allowing “an alien child age 16 or 17 to qualify as an immediate relative child
if the U.S. citizen adoptive parents have also adopted a sibling of that child
who is under the age of 16.” H.R. Rep. No. 106-383 (1999); see also 145
Cong. Rec. H10136-02 (1999) (statement of Rep. Lamar Smith) (“The bill . . .
would allow minor orphaned siblings to stay together when being adopted by
U.S. citizens. The bill would allow a 16 or 17-year-old child to qualify as an
immediate relative child if the U.S. citizen parents have also adopted a sibling
of that child who is under the age of 16. This bill thus would achieve the goal
of maintaining family unity . . . .”); 145 Cong. Rec. S12931-04 (1999)
(statement of Sen. Hatch) (“The intent of this bill is to allow immigrant orphan
siblings to stay together when being adopted by U.S. citizens. . . . This bill
would allow U.S. citizens to adopt immigrant children ages 16-17 if the
adoption would keep a group of siblings together.”). Thus, the primary goal
of the statutory revision was to preserve family unity.
Subparagraph (F)(i) includes a child who is under the age of 16 at the time a petition is
filed on his or her behalf and who is an orphan or falls within other specified circumstances.
1Cite as 24 I&N Dec. 442 (BIA 2008) Interim Decision #3597
To the extent that any statements in the legislative history might conflict
with the unambiguous meaning of the statute, the statute must prevail. See
Matter of Lemus, 24 I&N Dec. 373, 379-80 n.6 (BIA 2007) (citing U.S. Dep’t
of Treasury v. Fabe, 508 U.S. 491, 506-07 (1993) (rejecting a petitioner’s
citation to a single statement in a House of Representatives report because it
was “at odds” with the statute’s plain language)). While Congress apparently
assumed that younger siblings would be adopted before, or at the same time
as, an adoption of an older sibling, the sequence by which older and younger
siblings are adopted is not material to the goal of the legislation and is not
reflected in its language. We find no clear intent by Congress to impose the
restriction that the adoption of the older sibling must occur with or after the
adoption of a natural sibling who is also considered a child under the Act.
We also note that there are no Federal regulations that further address this
particular issue. Consequently, we agree with the petitioner that although the
beneficiary was adopted prior to her siblings, she is not disqualified on this
basis under section 101(b)(1)(E)(ii) of the Act.
The FO director denied the petition solely on the basis discussed above and
did not address whether the petitioner fulfilled the other requirements for
approval of the petition, including establishing a valid stepparent relationship
and the requisite periods of residence and legal custody for adoption. Because
we do not engage in fact-finding in the course of deciding appeals, we find that
it is appropriate to remand the record for further consideration of the visa
petition. 8 C.F.R. § 1003.1(d)(3)(iv) (2007).
ORDER: The petitioner’s appeal is sustained.
FURTHER ORDER: The decision of the Field Office director is vacated,
and the record is remanded for further consideration of the visa petition in
accordance with the foregoing opinion.
Cite as 24 I&N Dec. 442 (BIA 2008) Interim Decision #3597